Constitution Day 2019: Transformative Constitutionalism and the Indian Supreme Court

Over the last few years, India has witnessed significant changes in its substantive law, ushered in by Supreme Court rulings involving re-interpretations of the Constitution. On the occasion of Constitution Day 2019, we delve into the concept of Transformative Constitutionalism as an instrument used by the Court in ensuring a more equitable society.

Prominent examples in this regard include the NALSA judgment, which recognised the rights of the third gender; the Navtej Singh Johar case, which saw an end to decades of criminalisation of homosexuality; the decriminalisation of adultery; and even the Sabarimala judgment of 2018, even though the question of its correctness still hangs in limbo.

The Supreme Court’s role as the custodian and interpreter of the Constitution has enabled it to bring about these changes, combined with the growing recognition of the Indian Constitution as a transformative, rather than rigid, document.

While the phrase “Transformative Constitutionalism” does not find express mention in the same, the Supreme Court takes note of the transformative power of the Constitution in its 2014 NALSA judgment.

“The role of the Court is to understand the central purpose and theme of the Constitution for the welfare of the society. Our Constitution, like the law of the society, is a living organism. It is based on a factual and social realty that is constantly changing. Sometimes a change in the law precedes societal change and is even intended to stimulate it. Sometimes, a change in the law is the result in the social realty.“

The idea was expressly commented on four years later in the Navtej Singh Johar case. The opinion authored by Justice AM Khanwilkar for then Chief Justice Dipak Misra and himself states,

“The whole idea of having a Constitution is to guide the nation towards a resplendent future. Therefore, the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism.“

Origins of Transformative Constitutionalism

It is the South African experience that had initially prompted legal scholars to take note of the concept of Transformative Constitutionalism.

US scholar Professor Karl Klare’s work titled the Legal Culture and Transformative Constitutionalism, published in 1998 in the South African Journal of Human Rights, paved to way for much subsequent debate and discussion. Professor Klare viewed it as a long-term project of constitutional enactment, interpretation, and enforcement committed to transforming a country’s political and social institutions and power relationships in a democratic, participatory and egalitarian direction.

In a 2006 address, the South African High Court’s Justice SM Mbenenge took note of this definition and further explained that,

“This definition makes judges, other functionaries and institutions role-players in transformative constitutionalism. Indeed, judges are custodians of constitutional values such as human dignity, equality and freedom, and bear the obligation to ensure that constitutional provisions are applied in ways that ‘improve the quality of life of all citizens and free the potential of each person.’“

In South Africa’s case, the desire to remedy apartheid-era historical wrongs played a part in embracing the idea of Transformational Constitutionalism. As opined by former Chief Justice of South Africa, Justice Pius Langa,

“This is a magnificent goal for a Constitution: to heal the wounds of the past and guide us to a better future. For me, this is the core idea of transformative constitutionalism: that we must change.“

German scholar Michaela Hailbronner reasoned that German jurisprudence also reflects similar principles, with a view to correcting historical wrongs committed during the Nazi era. In a 2017 paper available here, she points out,

“Like South Africa after apartheid, Germany emerged after the Second World War a broken and morally discredited country with a strong imperative of political and social change … In spite of the conservative orientation of German constitutional framers, however, German constitutionalism became, over time, transformative in important respects. That it did is due primarily to the Justices at the German Constitutional Court and German legal scholars …”

Transformative Constitutionalism and recent Indian Supreme Court rulings

Like the experiences of South Africa and Germany, an acknowledgement of India’s own history of institutionalised inequalities prompted the Supreme Court to invoke the concept of Transformative Constitutionalism.

For instance, the transformative value of the Constitution to remedy historical caste-based inequities was acknowledged in the BK Pavitra II case, wherein the Supreme Court upheld the constitutionality of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018. In this case, Transformative Constitutionalism was invoked to justify affirmative action in order to compensate historical wrongs. In the judgment authored by Justice DY Chandrachud for Justice UU Lalit and himself, he wrote,

“There is substantial evidence that the members of the Constituent Assembly recognised that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them. One method of overcoming these inequalities is reservations for the SCs and STs in the legislatures and state services.”

In other cases, the transformative value of the Constitution was invoked to simply acknowledge wrongs and to correct the course for the future. And so, while decriminalising homosexuality in India, the Bench observed,

“It is difficult to right the wrongs of history. But we can certainly set the course for the future. That we can do by saying, as I propose to say in this case, that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations. Sexual orientation is recognised and protected by the Constitution. Section 377 of the Penal Code is unconstitutional in so far as it penalises a consensual relationship between adults of the same gender. The constitutional values of liberty and dignity can accept nothing less.”

The need for course correction in the face of historical wrongs also features in parts of the Supreme Court’s 2018 Sabarimala judgment. Notably, in Justice Chandrachud’s opinion, it is noted,

“Our conversations with the Constitution must be restructured to evolve both with the broadening of the content of liberty and dignity and the role of the Court as an enforcer of constitutional doctrine. The basic principle which must guide any analysis in this area is the dominance of the values of liberty, equality and fraternity as instruments in achieving individual dignity…

…If we are truly to emerge out of the grim shadows of a society which has subjugated groups of our citizens under the weight of discrimination for centuries, it is time that the Constitution is allowed to speak as it can only do: in a forthright manner as a compact of governance, for today and the future.“

Similar observations are found in the Supreme Court’s 2018 judgment that decriminalised adultery. While acknowledging the error in treating women as the property of men, which formed the basis of erstwhile Indian adultery law, the Supreme Court observed,

“The hallmark of a truly transformative Constitution is that it promotes and engenders societal change. To consider a free citizen as the property of another is an anathema to the ideal of dignity…Constitutional values infuse the letter of the law with meaning. True to its transformative vision, the text of the Constitution has, time and again, been interpreted to challenge hegemonic structures of power and secure the values of dignity and equality for its citizens.”

The transformative power of the Constitution, however, is not viewed as just a means to correct historical wrongs. As elaborated by former South African Chief Justice, Justice Pius Langa, they may also hold the key to a more equitable future, beyond mere course correction.

“…transformation is not a temporary phenomenon that ends when we all have equal access to resources and basic services and when lawyers and judges embrace a culture of justification. Transformation is a permanent ideal, a way of looking at the world that creates a space in which dialogue and contestation are truly possible, in which new ways of being are constantly explored and created, accepted and rejected and in which change is unpredictable but the idea of change is constant.

This is perhaps the ultimate vision of a transformative, rather than a transitional Constitution. This is a perspective that sees the Constitution as not transformative because of its peculiar historical position or its particular socio-economic goals but because it envisions a society that will always be open to change and contestation, a society that will always be defined by transformation.“